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How to Overcome The Supreme Court Decision to Strike Down Roe v. Wade

by Paul Levinson 15 days ago in supreme court
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Exercise Majority Rule

Photo by Joshua Woods on Unsplash

Lawrence O'Donnell pointed this out on his MSNBC show a little past 10pm Eastern time last night: The Supreme Court is what it is today because two Presidents who did not win the popular vote -- George W. Bush and Trump -- got to appoint Supreme Court justices.

In other words, the Supreme Court is what it is today because of minority rule, or just the opposite of democracy.

And it's even worse than that. George W. Bush became President of the United States in 2001 not only because he won the electoral vote while losing the popular vote. He became President because the Supreme Court ruled, 5 to 4, that the recounting of the vote in Florida had to be stopped. This was the result of a case brought to the Supreme Court to stop the recounting of the vote in Florida, ordered by state judges in Florida, who are supposed to have jurisdiction in such matters. The Democrats had reason to believe that the recounts would show that the Democratic candidate Al Gore not the Republican George W. Bush had won Florida and its electoral votes. The five Supreme Court justices who voted to stop the recount were all appointed by Republican Presidents. Three of the Supreme Court justices who voted to let the recount continue were appointed by Democratic Presidents, and one, David Souter, was appointed by a Republican but tended to vote with the Democratic appointees. Justice Sandra Day O'Connor, the first woman ever to be appointed to the Supreme Court, voted with the four other Republican appointees in that decision. She later said she regretted that decision.

So the decision announced yesterday in the draft ruling to end Roe v. Wade was made by a Supreme Court that was and is deeply undemocratic in its fundamental constitution and being. The way to remedy that announced decision -- not yet made, just heralded in a draft of the ruling -- therefore resides in reasserting democracy here in the United States. Since that ruling has not yet been officially made, there's still time to stop it via democratic processes. And further democratic actions could be taken after the ruling is officially made.

Here is how that might be done:

The Democrats in Congress -- the House of Representatives and the Senate -- vote to make Roe v. Wade statutory law. The Supreme Court decision strikes down a prior Supreme Court decision, Roe v. Wade, not a bill passed by Congress and then signed into the law by the President.

But the Democrats have only the slimmest majority in the Senate: 50 votes plus the tie-breaking vote by the Vice President. That's not enough to overcome a filibuster. So, before that vote can be taken to guarantee a woman's right to make decisions about her own body, Senators Manchin and Sinema would need to agree to suspend the filibuster for that vote. A vote to suspend the filibuster could also succeed if a requisite number of Republicans decided to vote that way.

Another possibility is to increase to number of Supreme Court justices from, say, nine to fifteen. The number of Supreme Court justices is not established in the Constitution. Both houses of Congress could pass a law to increase the number of Justices on the Supreme Court and the President could sign that increase into law. That could take some time, but would actually be a safer way to guarantee a woman's right to choose, since the Supreme Court, with its current nine justices, could well decide to find a guarantee of a women's right to choose unconstitutional, even if passed by both houses of Congress and signed into law by the President. But six other newly appointed Democratic justices would make such a benighted ruling highly unlikely if not impossible.

But, in order for the Democrats to pass such a bill, the filibuster would again have to be put aside.

The filibuster, like the Electoral College, is profoundly undemocratic, an assault on the very essence of the democratic process, which is majority rule. The world in different ways and continents is now putting democracy to the test. Here in the United States, we the people need to step up and make sure democracy has its way.

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About the author

Paul Levinson

Paul Levinson's novels include The Silk Code & The Plot To Save Socrates; his LPs Twice Upon A Rhyme & Welcome Up. His nonfiction including Fake News in Real Context, The Soft Edge, & Digital McLuhan have been translated into 15 languages.

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